State v. Harry D. Mitts, 96-LW-5234

• Decision Date: 19 December 1996
• Docket Number: 96-LW-5234,68612
• Parties: STATE OF OHIO, Plaintiff-Appellee v. HARRY D. MITTS, JR., Defendant-Appellant CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. HARRY D. MITTS, JR., Defendant-Appellant

No. 68612.

96-LW-5234 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 19, 1996

Criminal appeal from Court of Common Pleas Case No. CR-313539.

For plaintiff-appellee: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, DAVID ZIMMERMAN, Assistant, Justice Center Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

For defendant-appellant: DAVID L. DOUGHTEN, ESQ., Attorney at Law, 4403 St. Clair Avenue, Cleveland, Ohio 44103; THOMAS M SHAUGHNESSY, ESQ., 11510 Buckeye Road, Cleveland, Ohio 44104.

SUPPLEMENTAL JOURNAL ENTRY AND APPELLATE REVIEW OF DEATH SENTENCE

DYKE P.J.

Pursuant to R.C. 2929.05(A),^[1] this Court certifies that it has reviewed the judgment, the sentence and all of the evidence contained in the record and enters the following independent findings:

(1)

The aggravating circumstances for which the defendant was found guilty, as merged in this court's Journal Entry and Opinion, outweigh the mitigating factors in this case.

(2)

The offenses and aggravating circumstances which the defendant was found guilty of committing were proven beyond a reasonable doubt.

(3)

The death sentence is not excessive or disproportionate to the penalty imposed in similar cases.

(4)

The evidence supports the findings by the trial jury and trial judge that the defendant was guilty of aggravated murder and the aggravating circumstances charged in the indictment.

(5)

The trial judge properly weighed the aggravating circumstances for which the jury found appellant guilty and the mitigating factors.

(6)

The sentence of death is appropriate in this case.

MCMONAGLE, J., AND PATTON, J., CONCUR.

OPINION

DYKE P.J.

Defendant Harry D. Mitts, Jr. appeals from his convictions for two counts of aggravated murder with death penalty specifications and two counts of attempted murder. Defendant raises eleven assignments of error which challenge these convictions as well as the trial court's imposition of the death penalty. For the reasons set forth below, we affirm.

On August 25, 1994, defendant was indicted pursuant to a four count indictment in connection with the shooting deaths of Garfield Heights Police Sgt. Dennis Glivar and John Bryant, and the attempted murders of Garfield Heights Police Lt. Thomas Kaiser and Maple Heights Police Officer John Mackey. Count one charged the defendant with aggravated murder, and with firearm, peace officer, and three mass murder specifications. Count two charged the defendant with aggravated murder and with firearm and three mass murder specifications. Counts three and four charged defendant with attempted murder with firearm and peace officer specifications. Defendant pleaded not guilty and the matter proceeded to a jury trial on October 24, 1994.

The state's evidence established that in October 1993, defendant developed an interest in weapons and target shooting. By August 1994, defendant was a member of the Stonewall Shooting Range and owned a 9 mm Ruger automatic handgun, a .22 caliber handgun, a .44 Magnum handgun, and thousands of rounds of ammunition for these weapons. On August 14, 1994, defendant arrived at Stonewall at approximately 1:50 p.m. and practiced shooting the .44 Magnum. He conversed with the owner and another member of the shooting range. It is undisputed that he displayed no signs of intoxication at this time.

Defendant left the shooting range at approximately 5:30 p.m., then returned to his home at 5150 E. 88th Street in the Hillcrest Apartment complex in Garfield Heights. At some time between 7:00 p.m. and 8:00 p.m., Timothy Rhone was helping his sister move into an upstairs unit of the same building where defendant resided and he observed defendant with a firearm protruding from his back. Approximately 15 minutes later, Rhone saw defendant inside the apartment building wearing an ear set and carrying the weapon. Defendant pointed the gun at Rhone and said, "Get out or you will die." Rhone stood stunned in the doorway and defendant again ordered Rhone out and stated that he was not joking.

Rhone exited and told his mother to call 9-1-1, then went to a back parking lot to wait for the police. At this time, Tracey Griffin and John Bryant were returning from the grocery store and walked across the lot toward their apartment building at the Hillcrest complex. Defendant approached the couple and aimed a weapon at Bryant, which illuminated a red dot on Bryant's chest from a laser scope. Defendant uttered a racist remark and shot Bryant, an African-American. Defendant then continued walking and shooting randomly in the parking lot.

Defendant subsequently turned around to return to the area, and reloaded his weapon. Rhone attempted to distract defendant while Rhone's brother and brother-in-law assisted Bryant and Griffin. Defendant ordered the group to leave Bryant where he was, but they hurriedly brought him to Rhone's apartment where they called the police and attempted to administer aid.

Tracey Griffin, Timothy Rhone, and Daniel O'Brien, a visitor at the complex, further established that defendant did not appear intoxicated during any of the foregoing events.

The state next established that Garfield Heights Police Patrolman John Cermak was dispatched to the area at 8:15 p.m. As Cermak's vehicle approached, defendant fired eight to ten rounds at the officer. Cermak swerved his vehicle to avoid being struck and fired four shots at defendant. He then observed Garfield Heights Lt. Thomas Kaiser and Sgt. Dennis Glivar approaching and he radioed for them to use extreme caution.

Lt. Kaiser and Sgt. Glivar entered the 5150 East 88th Street apartment and located Rhone's apartment on the second floor. The officers checked Bryant and determined that he had no pulse. They then learned that the suspect was on the first floor and left Rhone's apartment in order to secure the building for the entry of paramedics. Sgt. Glivar proceeded down the steps armed with a shotgun and Lt. Kaiser followed armed with his service weapon. As Sgt. Glivar reached the landing, defendant opened his front door, positioned in the "shooter's crouch," and armed with the .44 Magnum in one hand and the 9 mm automatic weapon in the other, fired upon the officers. Sgt. Glivar sustained seven gunshot wounds and collapsed near the front door. Lt. Kaiser was struck in the hand, but he returned fire, striking defendant in the foot and hip. Lt. Kaiser was also struck by another shot, but it was apparently deflected by his bullet-proof vest.

Defendant fled into his apartment and Lt. Kaiser returned upstairs where he began negotiating with defendant in order to end the attack. Defendant replied that Lt. Kaiser would have to come down and kill him. Later, defendant overheard requests for assistance from the S.W.A.T. team, and he stated that he would kill the entire S.W.A.T. team.

Upon learning that Sgt. Glivar was injured, Officer Cermak entered the building through a service entrance and pulled him from the building. Sgt. Glivar was treated at Marymount Hospital but died from his injuries.

Lt. Kaiser continued to negotiate with defendant over the next twenty minutes. During this time, defendant threatened to kill Griffin, and he stated, "I've been drinking bourbon." According to Lt. Kaiser, the defendant showed no signs of intoxication.

Following his conversation with Lt. Kaiser, defendant emerged from the apartment, fired shots at the officers positioned outside, and then fled back inside. Lt. Kaiser and other officers evacuated the other residents from the apartment. Bryant was also evacuated at this time but he had died from a gunshot wound which lacerated his aorta and caused him to bleed to death within minutes of being shot.

At approximately 8:25 p.m., defendant called the home of his ex-wife, Janice Salerno, and her husband John Salerno, who is the Chief of Police of Grand River, Ohio. Defendant threatened Janice and she hung up on him. In a second call moments later, defendant spoke to Chief Salerno and stated that he had just shot a couple of police officers and another individual. In response, Chief Salerno asked defendant whether he had been drinking and defendant stated that he had consumed a bottle of bourbon and was now drinking Scotch whisky. According to Chief Salerno, defendant sounded intoxicated and his affect alternated between laughter and anger. In addition, defendant reported having difficulty loading a weapon. Finally, Chief Salerno stated that defendant indicated that he had planned to kill Janice and Salerno, but he decided not to do so out of concern for his young daughter.

Maple Heights Police Officer John Mackey arrived at the scene at approximately 8:38 p.m. in response to a call for mutual aid. Resuming negotiations, Mackey asked defendant about his telephone conversation, and defendant stated that he was speaking to his ex-wife's new husband. Officer Mackey continued to converse with defendant in order to build a rapport with him. During this conversation, defendant stated that he had consumed vodka, but according to Mackey, defendant did not seem intoxicated. Also at this time, defendant fired random shots with Sgt. Glivar's shotgun. He shot at the mailboxes directly across from his front door then complained that the shot was "a little high." Officer Mackey and Garfield Heights Police Sgt. Robert Sackett asked defendant to throw Sgt. Glivar's shotgun out of the apartment for the ostensible purpose of "sparing the officers extra paperwork" and defendant did so. He then loaded one of his remaining weapons and fired a shot which struck a wall and then struck officer Mackey in the leg.

The police fired tear gas into the apartment at approximately 1:00 a.m. and made...